Chilton v. Harbin
Supreme Court of Alabama
Error to the Circuit Court of Talladega. The defendant pleaded in abatement of the action, that he was not sued in the county of his residence. The plea was sworn to before a justice of the peace. To the affidavit was appended a certificate of the county clerk, certifying the official character of the justice, with the county seal attached. To this plea, the plaintiff demurred, and the court overruled the demurrer.
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Error to the Circuit Court of Talladega. The defendant pleaded in abatement of the action, that he was not sued in the county of his residence. The plea was sworn to before a justice of the peace. To the affidavit was appended a certificate of the county clerk, certifying the official character of the justice, with the county seal attached. To this plea, the plaintiff demurred, and the court overruled the demurrer. Thereupon, the plaintiff moved the court for leave to take issue on the plea, which the court refused, and rendered judgment for the defendant. This is now assigned for error’.
1Opinion of the CourtOrmond, J.
The plea setting forth the freehold and residence ofthe defendant in another county, was sufficient, and the de*172murrer to it was correctly overruled. The affidavit of its truth, made before a justice of the peace, was not objectionable, as the statute only requires that the plea should be accompanied by an affidavit of its truth, when the fact does not otherwise appear.
But in refusing permission to the plaintiff to take issue on the facts of the plea, the court erred. It is certainly the rule .of the common law, that the judgment for the defendant on a plea in abatement, whether it be an issue…
2Cases cited1 opinion
- M'Cutchen v. M'CutchenSupreme Court of Alabama · 1838
3Cited by1 opinion
- Day v. HuckabeeSupreme Court of Alabama · 1877